Here’s the approach that’s reflected in MSCD: If you could accomplish any given drafting goal in a number of different ways, consistency and efficiency would be enhanced if you, and everyone else, were to choose, and stick with, just one of the ways. And if you look closely, more often than not one of the different ways will prove to be superior to the others—that’s the one you should use.
Finding the best way sometimes requires revisiting an issue. Take what MSCD says about numbering or lettering exhibits and schedules. Here’s what 4.59 says:
Exhibits should be numbered (1, 2, 3) or lettered (A, B, C) consecutively in the order they are first encountered in the body of the contract.
Here’s what 4.72 says:
Schedules can be lettered or numbered consecutively, but once there are several of them, for ease of reference it’s preferable to give each schedule the number of the section to which it relates, with schedule 6.22 containing the factual information or provisions referred to in section 6.22.
That guidance isn’t specific enough; let me attempt to improve on it:
When someone reading the body of a given contract encounters a reference to a schedule or exhibit, the number or letter given that reference tells the reader where they can expect to find it among the attachments.
But numbering or lettering a schedule or exhibit could serve a second function: it could tell someone consulting a given schedule or exhibit where they could find at least one reference to it in the body of the contract. But it can’t serve that function if schedules and exhibits are simply numbered or lettered consecutively, without regard to contract section numbers.
It seems a pity to lose out on that extra functionality. I recommend that when a contract is divided into articles and so uses the multiple-numeration system for section numbers (1.1, 1.2, 1.3), you should number each schedule and exhibit with the number of the section that refers to it. (If more than one section refers to a given schedule or exhibit, use the number of the section with the primary reference.)
But what if a contract isn’t divided into articles and so doesn’t use the multiple-numeration system? You could still number schedules and exhibits using section numbers. But that could result in reader miscues: A reader who consults a given schedule and notes that it’s schedule 10 wouldn’t be able to tell whether the schedules were keyed to section numbers or simply numbered consecutively. Figuring the system out might require some checking and some flipping back and forth. Furthermore, someone who encounters in the body of the contract a reference to schedule 10 wouldn’t from that alone be able to tell whether it comes after schedule 9 or might come after a schedule bearing some lower, non-consecutive number.
Obviously, this confusion would also occur if in a contract not divided into articles you were to number schedules and exhibits consecutively.
One wants to avoid miscues of this sort: If a contract doesn’t use the multiple-numeration system for section numbers, you should use consecutive letters (A, B, C) for schedule and exhibit references.
What about a hybrid system for contracts divided into acticles? You could number each schedule with the number of the section that refers to that schedule but use consecutive letters for the exhibits.
MSCD suggests such an arrangement, in that 4.59 doesn’t contemplate keying exhibit numbers to section numbers, whatever the context. I think I opted for that arrangement because one doesn’t often see exhibits keyed to multiple-numeration section references. I suspect that’s because in longer contracts—they’re the ones using multiple-numeration section references—you generally have more schedules than exhibits, and drafters perhaps think it looks a little funny to have only four exhibits and have them numbered, say, 3.4, 3.8, 4.6, and 4.11.
But if to keying exhibit references to multiple-numeration section references offers extra functionality, why not do so?
I prefer straight numbering (1,2, 3 …) and the inclusion of a column in the list of schedules that specifies all the sections in the contract that reference each schedule.
The reason is that I have see several examples of schedules being referenced by multiple sections and also examples where the first section to reference a section does not contain the “primary” reference or where it has not be desirable to indicate such primacy.
It was suggested to me by another attorney that “exhibit” properly refers to only litigation documents, such as complaints and motions, while “attachment” is the more proper term for anything attached to a transactional document (as in Attachment A, B, C, instead of Exhibit 1, 2, 3. The definition of exhibit in legal dictionaries seems to provide some support for this contention. See, e.g., “n. 1) a document or object (including a photograph) introduced as evidence during a trial. These are subject to objections by opposing attorneys just like any evidence. 2) a copy of a paper attached to a pleading (any legal paper filed in a lawsuit), declaration, affidavit or other document, which is referred to and incorporated into the main document.” – http://dictionary.law.com/default2.asp?typed=exhibit&type=1 Any thoughts on this?
Jonas: The proposed distinction you were offered is untenable, as it’s standard for transactional lawyers to use the word exhibit for documents attached to contracts. Here’s the definition of exhibit provided by the rather more authoritative Black’s Law Dictionary: “A document attached to and made part of a pleading, motion, contract, or other instrument.” Ken
What is the proper way to do lettering of exhibits … A-Z and then go AA-ZZ or do I need to go A; AA; B; BB……??
Additional exhibits keep getting added so it constantly changes things on me.
Why not number them? Or key them to the relevant section number?
Im doing a mock trial, and I am still confused on what they all are saying!